• Regarding Hindu Succession Act 2005

Hi,

My great grand father had an ancestral property which went away after the construction of a Dam. So, the Govt as compensation gave some amount with which, my grand father bought another property (10 acres of agricultural land which will also be considered as ancestral as per my knowledge). My grand father passed away in 1978. My father and his 5 brothers got their 4 sisters married before 1989. After this, in 1994 this property was partitioned into 7 parts (Grand mother + My Father and his 5 brothers). The partition deed also mentions my Grand mother's part will also be distributed to 2 brothers of my father. Now that my father and his 2 brothers have decided to sell their part of this property, my aunts are planning to file a case against the sale. Can this be done?
Asked 4 years ago in Property Law
Religion: Hindu

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19 Answers

No this cannot be done as the property partition took place before 2005 and According to the SC judgement in prakash vs. phoolwati it is clearly laid down that in case the partition is done before 2005, amendment shall not effect it.

As it clearly stated that both father and daughter shall be alive on 9 September 2005. This is because in hindu partition open on death automatically so they are not entitled,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Even if this property is considered as ancestral property then also on death of the grand mother your aunts are entitled to get equal shares along your their brother in the share left by their mother.

2. Your aunts have no share in the property left by their father though.

3. So it is to be seen the claim raised by your aunts in the plaint.

4. Depending upon their claim the defence is to be prepared by you and your uncles.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
409 Consultations

5.0 on 5.0

If Partition of ancestral property is done before 2005 daughters would not have any share

Further grand father died before 2005 and daughters would not have share in ancestral property

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

hello,

the property belonged to your grandfather. your father's siblings including your aunts had a share in the property although they were not given any. therefore your fathers' sisters can file a case for cancellation of the sale deed declaring the sale as void.

regards

Rahul Mishra
Advocate, Lucknow
13846 Answers
65 Consultations

5.0 on 5.0

Your aunt cannot claim any share since as your grandfather had died prior to 2005 as well as the partition was done prior to 2005.

The Supreme Court in the case of Prakash & Ors Vs. Phulavati & Ors, held that the amendment to the HSA is prospective and is applicable to a living daughter of a living coparcener as on 9 September 2005 (i.e. at the commencement of the Amendment Act), irrespective of when such daughter was born provided that any disposition or alienation including partitions which may have taken place before 20 December 2004 as per law applicable prior to the said date will remain unaffected. Therefore for a daughter to be considered to be a coparcener, she and her father should both have been alive as of 9 September 2005.

Siddharth Jain
Advocate, New Delhi
6095 Answers
101 Consultations

5.0 on 5.0

HI

First and foremost you need to understand the peculiarity of the case and the likely contentions of the parties.

1) Preliminary issue is whether the property acquired by your grand father is ancestral or self acquired given that the HUF property belonging to great grand father has been acquired by the government for construction of dam and compensation has been received.

2) Technically any property obtained with the nucleus / seed capital of ancestral property is considered ancestral property. So in your case, your side of argument will be that the property obtained by your grand father is ancestral property as the nucleus/seed capital was from compensation paid by government whilst acquiring ancestral land.

3) Whereas the case of your aunt will be that since the HUF property obtained by your great grand father is no longer physically in existence, the compensation received by your grand father is in his individual capacity and as such the property obtained by your grand father is his self acquired property.

4) Supporting your aunt's claim would be the fact that once the property is received through any other mode, except through succession and that the acquisition of property held by great grand father is an acquisition by operation of law and hence no longer ancestral and subsequently the property purchased by grand father through compensation is self acquired and that the daughter's are entitled to share of property.

5) However the advantage to your side will be that there was a partition in the year 1994 and the said partition has not been challenged despite passage of 24 years, law of limitation will kick in and thereby preventing your aunt's from instituting the case.

6) So in the event of your aunt choosing to file the case against the sale , you should prima facie be able to prove to the court, the following

a) The compensation derived from ancestral property was fully utilised by your grand father to purchase 10 acres of agricultural property and that your grand father had no other income to purchase the 10 acres of land and

b) that the property remained undivided from the date of purchase till 1978 and notional partition on account of demise of grand father arose in 1978 and

c) Sisters were married prior to 1989 and karnataka hindu succession amendment act 1994 is not applicable to the said case as grand father died in the year 1978 and also that Hindu succession amendment act 2005 is not applicable in the present case and

d) Physical partition by metes and bounds was done amongst the grand mother and 6 sons vide 1994 partition and

e) Grand mother too had expressed her consent/WILL to part with her share of property to 2 sons after her life time . However adequate care will need to be taken to see the wordings of allotment of share to grand mother in partition deed to examine whether the share allotted to grand mother is

ee1) limited in estate

or

ee2) is it absolute right conferred on her.

please note that if it is an absolute right conferred on grand mother, then in absence of will, her share will vest with the sons and daughter's in equal share's.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Hello,

once the property has been divided the same ceases to be an ancestral property and as such the aunts now do not have any right or title on the said property.

any claim on the said property by the aunts will not be a fruitful exercise.

regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

yes u can sell the property of your part only.your property cannot dissolved.u can sell your share only means on paper you can sell not physical possession of the propery

Jay B Soni
Advocate, Vadodara
8 Answers

Not rated

Dear Sir,

Your aunts can file such suit but it is very difficult to prove their claim on various grounds like it is not forth coming from the last four generations. Secondly it lost character of ancestral property the moment it was liquidated and compensation was paid and from that compensation the present land was not purchased but with the self earnings of grandfather the present land was purchased. So and so forth defenses can be taken. The meaning of ancestral property is defined as follows:

======================================================================================

What does the grandparent's property law in India state? Does the grandson own the right to the property?

All property's owned by a Hindu person devolves onto his class one legal heir's.

Now to the specific scenario's in ur example (for sake of convenience I'm presuming ur ur grandfather has only one legal heir)

Senario1: The property is self acquired by your Grandfather, in such case upon his demise interstate (without a will) the property would devolve upon ur Father and not you. In case your farther passes away before your grandfather then it such case it would be devolve upon you, your mother and ur siblings equally.

Scenario 2: the property in question is self acquired by ur grandfather father ( ur great grand farther) - would devolve same as scenario 1.

Scenario 3: the property in question is self acquired by ur grandfather grand father ( ur great great grand farther) - would devolve same as scenario 1.

Scenario 4: the property in question is self acquired by ur grandfathers great grand father ( ur great great great grand farther) - then in such a case you would be entitled to the property by birth as it becomes ur ancestral property.

To give you more clarity on the concept of Ancestral Property's : any property which passes undivided down 4 generations of male lineage is called ancestral property. The right to such property acures at birth unlike other laws of inheritance where right arises upon the death of the the owner.

Hope this brings some clarity to your question and your sense of entitlements.

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

If that partition deed is registered and mutated then the sale is a possibility but not before the date of the mother of your father.

Vimlesh Prasad Mishra
Advocate, Lucknow
6849 Answers
23 Consultations

4.9 on 5.0

1. aunts have no right in ancestral property as grandfather passed in 1978

2. aunts are not coparcenors in ancestral property

3. their suit will fail. you need not worry

4. your father and uncles can sell their respective shares

Yusuf Rampurawala
Advocate, Mumbai
6999 Answers
79 Consultations

5.0 on 5.0

Yes, property would have devolved by 1/11th each. Hope no grand son born in 1978.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

This is my response to you:

1. The case filed by your aunts will have no merits;

2. Your father and your uncle have full rights over the transfer and sale of their share of the proeprty;

3. They can sell it for any amount to anyone they want;

4. If they file a case in court, file an application under Order 7 Rule 11 of CPC for rejection of their plaint.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. When was the compensation paid? The property bought by your grand father was not out of the sale proceeds of the ancestral property, it was from the compensation awarded due to the loss of ancestral property, hence the property purchased by your grand father was his self acquired and not ancestral.

2. If your grandfather passed away intestate then his property devolved through intestate succession on his widow and all children equally. The share of your father's sisters was at par with that of their brothers, so if they were not parties to the partition deed or did not execute a release deed to release their share in favour of brothers then they can file a suit for partition to cull out their share in the property through separate possession and also seek injunction to restrain brothers from selling the property.,

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

If there was a proper partition then your paternal aunts cannot have any claim in this proeprty.

This property was purchased by your grandfather, it may be or may not be out of the consideration amount received from government towards compensation.

That subject will extinguish with the compensation paid hence ther is no reason to consider that as ancestral proeprty.

Even if it is considered as ancestral proeprty the married daughters shall not have rights in the property moreover they were partitioned before the year 2005

Hence your aunts claim may not be maintainable.

T Kalaiselvan
Advocate, Vellore
79241 Answers
1618 Consultations

5.0 on 5.0

If there was no proper partition done in the past and there arises a dispute by the aggrieved aunts, you may better arrange for an amicable solution to this on mutually agreed conditions by drawing a partition deed on the same lines.

If they do not agree for any conditions then you may go ahead with the proposed partition suit.

If your aunts has grievances for not allotting them a share in the properties, then they may agitate over the issue at any time, hence an amicable solution for this will be the better option.

T Kalaiselvan
Advocate, Vellore
79241 Answers
1618 Consultations

5.0 on 5.0

You can file declaratory suit that you are absolute owner of your share of property as per registered partition deed

2) disposal of suit may take some years depending upon pendency of cases

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

File a declaration suit with regards to the same.

Get in touch with a local lawyer.

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

File a suit of declaration on that partition the court shall examine the issue and declare the partition valid. The declaration suit is filed in the civil court at jurisdiction wherein the land is situated.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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